Brain Injury Claims

"Kingsley Napley guided us through a very difficult and complicated matter in a way that made it easier for us to both understand and cope with." Chambers UK, A Client's Guide to the Legal Profession

We are experienced in acting for adults and children who have suffered brain damage through an injury or medical negligence.
 

The effect of a brain injury (sometimes described as neurological injury) varies widely. In some cases an injured person is left in a minimally conscious state or might have significant on-going problems with physical co-ordination and decision making. Other people may have more subtle injuries but still experience difficulties coping with life in the aftermath of their injury. Brain injury can also cause additional problems, such as visual impairment or epilepsy.

We believe that people with brain injuries should have the opportunity to live life as fully as possible.  We are members of Headway (the brain injury association) and signatories to the Serious Injury Guide.  Our expertise is also recognised by the legal directories Legal 500 and Chambers UK.

We support people suffering from brain injury and their families through the process of bringing a claim, to enable them to obtain much needed compensation to adapt to living with these injuries.

If you or a family member has suffered brain injury, through an accident or an unexpectedly poor outcome from medical treatment, please contact us to discuss how we can help.

Situations in which we often assist

Brain injury may be caused by an injury that was someone else’s fault or through negligent medical care. Some cases involve both (for example where substandard medical care is provided to someone who has been involved in an accident).  

Some ways in which a brain injury might give rise to a claim include: 

  • Road traffic accidents
  • Head injuries which happen in the workplace or other places outside the home
  • Failure to provide appropriate medical care for a head injury
  • Inadequate treatment of neurological conditions such as a stroke or brain tumour
  • Delays in managing intracranial hypertension
  • Delays in treating an infection leading to encephalitis (inflammation of the brain)
  • Inadequate treatment of meningitis or sepsis
  • Failures in anaesthesia or other medical treatment leading to oxygen deprivation (hypoxia)

We also act for children who have suffered brain damage during birth or in the neonatal period.  For further information about this, see our Cerebral Palsy and Birth Injury page.

Your claim

Every case is investigated by our specialist lawyers, led by a partner.  This typically involves working with medical experts (such neurologists, neurosurgeons, occupational therapists and psychologists) to understand the injury.  We consider how it was caused and its impact on the injured person’s life.

We also calculate the amount of funds required to put in place an individualised package of high quality care and support, as well as compensation  for losses resulting from the injury, such as lost earnings or pension. 

For further information about compensation we have secured for clients with brain injuries, see cases we have acted in.

BRAIN INJURY FAQS

What is an acquired brain injury?

An acquired brain injury refers to damage to the brain which occurs after a person’s birth. It can be suffered at any stage in life. The description ‘acquired’ distinguishes it from brain damage which occurs before or during birth.

An acquired brain injury can be caused by traumatic injury to the head or may have a medical cause, such as lack of oxygen to the brain.

 

How long do I have to bring a brain injury claim?

In England and Wales, the usual rule is that a claim for injury caused by negligence must be formally started at Court within three years of the date the negligence occurred, or the date on which the injured person should reasonably have been aware that there might be grounds to bring a claim (if that date is later). If a child is injured by negligence, they usually have until their 21st birthday to formally start their claim at Court.

If the claim is for someone who does not have ‘mental capacity’ to bring a negligence claim, there is no time limit.  If they later regain mental capacity, the three year period will begin to run at that point.

 

Can I bring a claim on behalf of a child or a family member who is not able to do it themselves?

If a claim relates to injuries suffered by a child or an adult who does not have ‘mental capacity’; a family member (or other trusted person) can act as a ‘Litigation Friend’ and bring the claim on their behalf.

If you are unsure about whether you can bring a claim on someone else’s behalf, we will be able to advise you.

 

What is the process for bringing a claim?

We start by obtaining evidence such as medical records, accident reports, witness statements, and expert evidence to prove that the injury was caused by negligence. 

We also calculate the amount of compensation that can be claimed.  Typically this involves instructing experienced experts to advise on the injured person’s needs, in order to maximise the level of compensation.  We then try to reach a financial settlement with the Defendant (the individual or organisation legally responsible for the injury) or their insurer. 

In some cases settlement is agreed at an early stage.  In other circumstances, it may be necessary to begin Court proceedings.

For further information on this process, read our Guide to Making a Claim.

 

Will the case be decided by the Court?

Probably not.  The vast majority of personal injury and medical negligence claims are not decided by the Court.  Occasionally, the Court will decide a case, if it cannot be resolved any other way.

Successful claims are usually resolved by agreeing a settlement either before or during formal Court proceedings.   

Where the claim is for a child or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement. This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person.

 

How is the amount of compensation decided?

We will tailor the compensation claimed to meet the needs of the injured person. 

The first step is to consider how the brain injury has affected the injured person’s life and whether that will change in the future. We then calculate the amount of funds required to meet their additional needs and compensate them. Depending upon the circumstances, this may include funds for:

  • Private round-the-clock care
  • Private therapies and medical treatment
  • Specialist equipment and vehicles
  • Adapted accommodation
  • Support with education or work (if that is possible for the injured person)
  • Compensation for loss of earnings and pension
  • Compensation for losses in self-employment

We regularly use leading experts and barristers to assist in identifying all aspects of an injured person’s needs.

 

What happens to compensation obtained for someone with a brain injury?

If an adult has ‘mental capacity’ to manage the compensation themselves, it will be paid to them.  

If they do not have ‘mental capacity’ to manage their financial affairs, a professional ‘Deputy’ is usually appointed to manage the compensation on their behalf and to act in their best interests.  The Deputy will release funds to ensure that the injured person’s needs are met in an appropriate way.

See Kingsley Napley’s Court of Protection and Deputyship page for further details about the role of a professional Deputy.

 

I am struggling with effect of a brain injury.  Will it take a long time before the case is concluded?

Medical negligence and personal injury claims typically involve detailed investigation and expert evidence. They often take several years to resolve.  

Our approach is to seek an admission of liability (i.e. confirmation that negligence occurred and caused injury) as early as possible in the process.

When liability is established, the Defendant usually has to pay part of the compensation immediately. This allows the injured person’s needs to begin to be met while the work to quantify the full amount of compensation continues.

 

How do I access medical records?

Medical records are usually the starting point for our investigation of a claim. With your permission; we request these records directly from the treatment provider(s).

Our clients sometimes wish to obtain copies of the medical records themselves before deciding whether to begin a claim. Please see our Guide to Accessing Medical Records for further information on how to request records.

 

Other organisations and resources that may help

 

 

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Chambers UK, A Client's Guide to the UK Legal Profession 2019

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